December Term, 1848
H.A. Foster, for the plaintiff.
Geo. F. Comstock, for the defendants.
The principal question in this case is, whether the bond executed by Luce and his sureties is a mere bond of indemnity, requiring proof of actual damage, or whether it provides an indemnity against the liability of the sheriff on account of the acts done or omitted by his deputy.
The cases of Rockfeller v. Donnelly, (8 Cowen, 623,) and Chase v. Hinman, (8 Wend. 452,) have been relied upon, particularly the former, as decisive of this question. In the case first cited, the action was upon a bastardy bond, the condition of which was "to save, defend and keep harmless the overseers of the poor, and the inhabitants of the town, from and against all charges, damages and expenses, taxes, rates and assessments, for or by reason of the birth, education and maintenance of the child," then unborn. The two judges who delivered the prevailing opinion in the court of errors, agree that in its legal effect the instrument was a bond of indemnity against the charge to be created by the expected birth of a bastard child. ( Id. 653.) The chancellor remarked, "the town was damnified by the `charge' which was brought upon it by the birth of the bastard. The law imposes on the officers of the town the liability and duty of providing necessaries for the infant, and it was against this legal obligation that the defendants bound themselves to indemnify the plaintiff." Senator Spencer remarked that "the condition was broken the moment the child was born, for then it became a charge upon the town." ( Id. 653.) The construction given by the learned judges therefore to the bond in that suit was that it provided for an indemnity against a legal liability. The case of Chase v. Hinman, ( supra,) was an action on a bond, the condition of which was that the obligor should "save harmless and indemnify the obligee against all damages, costs and charges, to which he might in any way be subjected, or become liable for," c. No money was paid; and it was held by the court that by the instrument itself a distinction was obviously taken between damages actually sustained, and a fixed legal liability for such damages, and that the indemnity was against both.
The condition of the bond before us is as follows: "Now therefore, if the said Stephen Luce shall so demean himself in all matters touching his duty as such deputy sheriff, that the said sheriff shall not sustain any damage or molestation whatsoever, by reason of any act from this date done or any liability incurred by and through said deputy, then the obligation to be void." The distinction between the bond in question and those above mentioned, consists, I apprehend, in this, that by the former a "charge" or "fixed legal liability" is declared to be the injury from which the obligee is to be saved harmless. By the condition of the latter, the obligor stipulates that the sheriff shall not sustain any damage or molestation by reason of any liability, c. By the former, he is to be saved from the thing specified. By the latter, from its consequences, or in other words, from the damage or molestation which may result from the liability.
The distinction is very important. It is recognized in the cases to which reference has been made, and in others, and will be found to pervade most of the authorities which have been cited. It is the distinction between an affirmative covenant for a specific thing, and one of indemnity against damage by reason of the non-performance of the thing specified. The object of both may be to save the covenantee from damages, but their legal consequences to the parties are essentially different. Thus, in Kip v. Brigham, (7 John. Rep. 168,) the condition of the bond was that the debtor "should remain a true and faithful prisoner and not escape; and that he should not at any time escape or go without the limits." The prisoner escaped, the very act to which the covenant applied, and it was held a breach, and the liability of the sheriff the measure of damages. The court, in 6 John. Rep, 159, say, it is true that the bond was in effect a bond of indemnity; but they nowhere intimate that the rights and remedy of the obligee in the two cases were identical. So in Warwick v. Richardson, (10 Mees. Welsby, 284,) trust moneys were left by the testator in the hands of a co-trustee to be used in trade. The latter executed a bond, the condition of which was to save, defend, and keep harmless the obligee from all suits, claims and demands, c. prosecuted or made against him. A decree was obtained by the cestuis que trust against the plaintiff's testator for the trust money. The court say that the obligor in order to save the obligee harmless from this claim, ought to have invested the trust moneys pursuant to the will. Not having done so, the proper amount of damages is the amount to which the claim subjected the obligee. The obligee was to be saved from any claim. This was the act to be done. Its non-performance was the breach, and the legal liability of the obligor the measure of damages. The cases of Thomas v. Allen, (1 Hill, 145,) and Churchill v. Hunt, (3 Denio, 321,) are to the same effect.
Justice Beardsley states the obvious truth in Churchill v. Hunt, that upon obligations of this sort, the right of action becomes complete on the defendant's failure to do the particular thing he agreed to perform. Non-damnificatus cannot be pleaded in such cases, although it may be where the condition is to acquit the plaintiff of any damage by reason of the particular thing. (1 Saunders, 116, n.; 1 Hill, 146.) It is believed that all the cases referred to by the learned judge of the supreme court whose opinion is before us, may be reconciled upon the principle above suggested. Here the defendant agreed that the plaintiff should not sustain any damage, which means actual damages, by reason of any liability incurred by the act of the deputy. The case is therefore within the principle stated in the note to Saunders.
The word molestation cannot enlarge the condition beyond what would be implied from the word damage. The former occurs frequently in covenants for quiet enjoyment, and against incumbrances. Nothing short of an eviction, or in the case of the latter covenant, the payment of money on account of the incumbrance, will entitle a party to recover, however much he may have been annoyed, troubled or molested. Indeed damage is much the most comprehensive word of the two; molestation, if it has any legal meaning, being but a species of damage.
The plaintiff having failed to establish a breach of the condition of the bond, was not in strictness entitled to nominal damage. But as the error can work no injury to the parties, a new trial must be denied.
New trial denied.